T 0961/17 - (I) Offer to demonstrate

Key points

•  The Board, in this opposition appeal
•  “The appellant's [patentee's] offer to carry out a demonstration during the oral proceedings comparing a hydraulic hose as PPTH [pull-push-turn hose] according to the solution of the patent and an air push rod allegedly corresponding to prior art solutions in support of its oral submissions constitutes an amendment to the appellant's case but not a request for taking evidence under Article 117 EPC. In fact, the appellant clarified that the air push rod they intended to demonstrate during the oral proceedings had recently been bought and was thus neither the object of the alleged prior use nor was it otherwise state of the art.”
• “In application of Article 13(2) RPBA 2020, which applies in the present case in view of Articles 24(1) and 25(1) and (3) RPBA 2020, the demonstration can be taken into account because there are exceptional circumstances justifying its admittance: the demonstration constitutes a legitimate reaction to the board's preliminary opinion expressed in the communication pursuant to Article 15(1) RPBA 2020, in particular regarding the board's provisional interpretation of the term "push-pull-turn hose".”
• It Board may be correct that the request to demonstrate a hydraulic hose during the oral proceedings is an amendment of the appeal case in the sense of Art.13(2), and more generally would be a case amendment (e.g. when requested already with the SoG). However, for this status of case amendment it is not relevant in my view whether the request constitutes a request for the taking of evidence under Art. 117(2) EPC.  
• In my view, the "demonstration" can not be anything else than evidence under Art. 117 EPC, which I assume is the same as evidence in the sense of the RPBA.
• The debate was about the meaning of the term "pull-push-turn hose" in the claim of the patent. Generally, if claim interpretation is treated as a factual issue (and not merely a legal issue), it must be open to the giving of evidence by the parties (in m view). 

T 0961/17 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t170961eu1.html

2. Request to exclude documents D9 to D17 from the appeal proceedings

Documents D9 to D17 were filed during the opposition period. Therefore, the opposition division had no discretion not to admit these documents into the proceedings, nor is there any legal basis for the board to exclude them from the proceedings. The question of whether the respondent's objections based on these documents are sufficiently substantiated has no bearing on the admissibility of these documents.

Decision T 222/85 deals with a different question (the admissibility of an opposition) and is thus irrelevant for the current case.

In decision T 32/10, documents cited in both the grounds of opposition and the statement of grounds of appeal were not admitted into the appeal proceedings because their significance was not known until shortly before the oral proceedings in appeal (see point 2 of the Reasons). This board is of the opinion that it is not the admittance of the documents as such but the admittance of objections based on them that must be decided upon in such a case.

Consequently, the appellant's request to exclude documents D9 to D17 from the appeal proceedings cannot be allowed.

3. Admittance of the demonstration of an air push rod and a hydraulic hose

The appellant's offer to carry out a demonstration during the oral proceedings comparing a hydraulic hose as PPTH according to the solution of the patent and an air push rod allegedly corresponding to prior art solutions in support of its oral submissions constitutes an amendment to the appellant's case but not a request for taking evidence under Article 117 EPC. In fact, the appellant clarified that the air push rod they intended to demonstrate during the oral proceedings had recently been bought and was thus neither the object of the alleged prior use nor was it otherwise state of the art.

In application of Article 13(2) RPBA 2020, which applies in the present case in view of Articles 24(1) and 25(1) and (3) RPBA 2020, the demonstration can be taken into account because there are exceptional circumstances justifying its admittance: the demonstration constitutes a legitimate reaction to the board's preliminary opinion expressed in the communication pursuant to Article 15(1) RPBA 2020, in particular regarding the board's provisional interpretation of the term "push-pull-turn hose".

Consequently, the board decided to allow the appellant to carry out the offered demonstration of an air push rod and a hydraulic hose during the oral proceedings.